Hughes v. Webster

• Citation: 52 Colo. 475,122 P. 789
• Parties: HUGHES v. WEBSTER.
• Decision Date: 01 April 1912
• Court: Colorado Supreme Court

122 P. 789

52 Colo. 475

HUGHES v. WEBSTER.

Supreme Court of Colorado

April 1, 1912

Appeal from District Court, Kit Carson County; W. S. Morris, Judge.

Action by B. M. Webster against A. C. Hughes. From a judgment for plaintiff, defendant appeals. Affirmed.

George W. Taylor, for appellant.

Allen &amp Webster, of Denver, for appellee.

GABBERT J.

Appellee plaintiff below, brought suit against appellant, as defendant, to quiet title to a quarter section of land located in Kit Carson county. The defendant answered, setting up several defenses. To this answer the plaintiff filed a reply, putting in issue its affirmative averments. The case was tried to the court, and judgment rendered in favor of the plaintiff, from which the defendant has appealed.

Plaintiff in order to establish his title, introduced in evidence the judgment roll of the district court of the city and county of Denver, including the judgment rendered in an action in which the appellee was plaintiff, and the Reliance Trust Company defendant. The action was to recover on a money demand. An attachment was issued and service had upon the defendant by publication. Under the attachment the premises in controversy were levied upon, subsequently sold under execution, and a sheriff's deed issued to the plaintiff. Counsel for defendant contends the record in this case and judgment roll show that the judgment was invalid, for the reason that the court did not acquire jurisdiction of the defendant in the action. This is a collateral attack. As against such an attack, the judgment of a court of record is supported by the conclusive presumption that jurisdiction was obtained of the party against whom it was pronounced, unless the contrary affirmatively appears from the record. Trowbridge v. Allen, 48 Colo. 419, 110 P. 193.

It is contended the judgment roll shows that certain steps taken were not sufficient to vest the court with jurisdiction. We think they were.

It is also contended the roll fails to exhibit that certain other steps were taken. The mere absence from the judgment roll of proofs which ought to have been included does not establish affirmatively in a collateral attack that a court of record was without jurisdiction to enter the judgment it did. Farmers' Union Ditch Co. v. Rio Grande Canal Co., 37 Colo. 512, 86 P. 1042. This rule applies in attachment cases. Burris v. Craig, 34 Colo. 383, 82 P. 944; Van Wagenen v. Carpenter, 27 Colo. 444, 61 P. 698.

Defendant, in order to establish title, offered in evidence a tax deed to the premises in controversy, which, on objection of the plaintiff, was refused. It appeared upon the face of the deed that several noncontiguous tracts of land were offered and sold en masse for a gross sum. Such a sale is void, and a tax deed which shows this fact is also void. Page v. Gillett, 47 Colo. 289, 107 P. 290; Clark v. Huff, 49 Colo. 197, 112 P. 542.

The tax deed was dated October 22, 1898, and was recorded November 27, 1901. Plaintiff's case was instituted December 21, 1907. The defendant pleaded that plaintiff's case was not brought within five years after the execution and delivery of the tax deed, and for that reason its validity could not be attacked because of the provisions of section 3904, Mills' Statutes, which provide, in substance, that an action for the recovery of land sold for taxes shall not lie unless it be brought within five years after the execution and delivery of the deed. This limitation does not apply to a tax deed void upon its face. In other words, a tax deed void upon its face does not set in motion this five-year statute of limitations. Page v. Gillet, supra; Sayre v. Sage, 47 Colo. 559, 108 P. 160.

The defendant also pleaded that for a period of seven...